1. The case originated in an application
(no. 69332/01) against the Kingdom of Denmark lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a Danish national,
Mr Peter Rohde (“the applicant”), on 19 February 2001.

2. The applicant was represented by Ms Merethe
Stagetorn, a lawyer practising in Copenhagen. The Government were represented
by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs,
and their Co-Agent, Ms Nina Holst-Christensen of the Ministry of Justice.

3. The applicant alleged that the Danish
authorities subjected him to a treatment contrary to Article 3 of the
Convention since they detained him on remand in solitary confinement
from 14 December 1994 until 28 November 1995.

4. The application was allocated to the
First Section of the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.

5. By a decision of 4 December 2003,
the Court declared the application admissible.

6. The applicant and the Government each
filed observations on the merits (Rule 59 § 1).

7. On 1 November 2004 the Court changed
the composition of its Sections (Rule 25 § 1). This case was assigned
to the newly composed First Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The decision(s) to submit the applicant
to pre-trial detention in solitary confinement

8. On 25 October 1994 a warehouseman found
5.684 kg of cocaine hidden in a consignment of green papaya fruits from
Brazil, ordered by the applicant. The discovery was reported to the
police, who on the same day interviewed the applicant. He denied having
any knowledge of the cocaine and explained that he had ordered the fruits
because he contemplated developing a health product made from the seeds.

9. On 13 December 1994 at Copenhagen Airport
when the applicant was about to emigrate to England he was arrested
and charged with drug trafficking.

10. On 14 December 1994 the City Court
in Copenhagen (Københavns Byret) decided with reference to section 762, subsection
1 (iii) and section 770a of the Administration of Justice Act (Retsplejeloven) that the applicant be detained on remand and
in solitary confinement. The time limit was fixed at 28 December 1994
with regard to the solitary confinement and at 10 January 1995 as concerns
the pre-trial detention. The City Court referred notably to the facts
that a person, PL, whom the applicant had known as one of his acquaintances
for just under six months had been arrested in the same case, that PL
had picked up a load of papaya fruits shortly after the applicant's
consignment of papaya fruits had been delivered to him, that co-offenders
were assumed still to be at large, that further investigation was required
in the case, and that the applicant had taken up residence in London
after the commencement of the case.

11. On appeal to the High Court of Eastern
Denmark, the decision was upheld on 17 December 1994 on the grounds
stated by the City Court.

12. During a police interview on 21 December
1994 the applicant stated that in October 1994 he had been contacted
by a Brazilian papaya fruit farmer, called RS, in search of a business
partner in Denmark. RS had found the applicant via a friend, RB, whom
the applicant knew from the USA. Accordingly, the applicant had contacted
PL in order to obtain his assistance with the importation.

13. On 28 December 1994 the City Court
extended the solitary confinement until 10 January 1995. It appears
from the court record that the applicant's counsel had confirmed in
writing that the applicant had consented to this extension without appearing
in court.

14. The detention on remand in solitary
confinement was prolonged by the City Court on 10 January 1995, upheld
on appeal on 16 January 1995 by the High Court, which found among other
things that no reasonable explanation of the applicant's importation
of papaya fruits had been brought to light, and that the applicant's
importation of the fruits seemed to constitute the link between PL and
the cocaine.

15. The applicant's pre-trial detention
in solitary confinement was prolonged anew by the City Court on 7 February
and 7 March 1995. The applicant appealed against the latter decision to
the High Court, and submitted in this connection his diary, which contained
notes as to RS and RB on the dates 11 and 14 October 1994. The applicant
explained that RS and RB had been supposed to come to Denmark on 14 October
1994, but that they had never showed up. On 24 March 1995 the High Court
confirmed the City Court's decision of 7 March 1995 on the following
grounds:

“...Despite the new information in [the applicant's]
diary book notes, his importation of papaya fruits is still found to
constitute the link between [PL], also charged, and the discovery of
the cocaine. This is supported by the telephone call made by [the applicant]
on 24 October 1994 [to PL]. Therefore, the reasons for continued detention
on remand under Section 762, Subsection 1 (i) and (iii), and for continued
solitary confinement are still justified as stated in the City Court
order of 7 March 1995.”

16. The pre-trial detention in solitary
confinement was further extended as follows; by the City Court on 4
April 1995, upheld on appeal by the High Court on 20 April 1995; by the
City Court on 25 April 1995, upheld on appeal by the High Court on 11
May 1995; by the City Court on 30 May 1995; on 27 June; 7 July; 25 July;
22 August; 19 September 1995.

17. PL admitted to cocaine smuggling
on 12 September 1995. In addition, he stated that the applicant had
participated, but under the belief that the smuggling concerned diamonds.
Having been confronted with this statement, during an interview with
the police on 26 September 1995 the applicant explained that he and PL
had actually planned to smuggle diamonds in the papaya fruits. After
the papaya fruits had been delivered on 24 October 1994, PL had informed
the applicant that the diamonds had arrived safely and that PL had sold
them for a profit amounting to 500,000 Danish kroner (DKK). When the
applicant had been confronted by the police and the press with the discovery
of the cocaine, he had panicked and decided to emigrate to England.
The applicant admitted that his previous explanation about RS and RB,
and the notes in his diary had been fabricated, and made up by him and
PL before their arrest as a “cover story”.

18. On 3 October and 17 October 1995, the
City Court upheld the applicant's pre-trial detention in solitary confinement
on the basis of submitted letters containing the applicant's and his
counsel's consent. At a court hearing before the City Court on 31 October
1995, the applicant and counsel were present and objected to the continued
confinement. The City Court decided as follows:

“...the court finds it necessary under section
770 a of the Administration Act to maintain the solitary confinement
in view of the prosecutor's information on the divergences between particular
[the applicant's] and the detained PL's statements as to whether the
two persons had had discussions in relation to the smuggling of cocaine
in connection with the agreement between them on smuggling from Brazil.
Despite the duration of the pre-trial detention, the court finds that
the solitary confinement must be maintained at least until the examination
in court has been carried out, and it should be noted that the examination
has been fixed for 24 and 28 November 1995.”

On appeal, on 2 November 1995 the decision
was upheld by the High Court

19. At the court hearing before the City
Court on 28 November 1995 the applicant confirmed the explanation he
had given on 26 September 1995 and the City Court lifted the solitary
confinement. Nevertheless, the applicant remained voluntarily in solitary
confinement until 12 December 1995.

B. The conditions in the prison

20. During the period when the applicant
was detained in solitary confinement he was placed in the Western Prison (Vestre
Fængsel). The cells there have an area of about eight square
metres. They are furnished with a bed, a table, a chair, a lamp, a bookcase,
a cupboard, a radio, a television set, a refrigerator/freezing compartment,
a duvet, a pillow, a mirror, a sink, bed linen, a tea-towel and a towel.
There is a window in each cell placed in a high of approximately 3 meters
above the floor. The flooring in the cell is terrazzo/cement.

21. Being detained on remand in solitary
confinement in the Western Prison, the applicant was totally excluded
from association with other inmates. He followed the daily routine in
the so-called segregation wing and could use the fitness room, borrow
various games, occupy himself with various hobby activities such as
painting and borrow books once a week, buy goods in the shop, including
newspapers, and receive tuition, including school tuition. He was allowed
to two daily exercise periods (morning and afternoon), each lasting
half an hour, but it was up to him to decide whether to make use of
the outdoor exercise option.

C. Visits by family and friends

22. Visits from the applicant's family
and friends were only allowed under supervision. The applicant's mother
visited the applicant twice in the period from 14 December 1994 until
10 January 1995. Thereafter, during a shorter period, the applicant
refused to receive visitors. From 7 March 1995 she visited him every
week for approximately one hour. It appears that in the beginning friends
came along with her, up to five persons at a time, but that the police
limited the visits to two persons at a time in order to be able to check
that the conversations did not concern the charge against the applicant.
Since February 1995, the applicant's father along with a cousin visited
the applicant every two weeks.

D. Contact with counsel, police officers, judges
and the public prosecutor

23. The applicant's counsel came to visit
the applicant approximately once a week. It appears from the case-file
that counsel sent herbal medicine to the applicant a couple of times.
Also, it appears that on one occasion the prison staff asked the prison
management to consider limiting the visits from counsel because these
seemed to be more frequent and last a lot longer than usual counsel
visits. The prison management discussed the matter with counsel, but
no restrictions were imposed.

24. Moreover, during the segregation
period, the applicant was questioned by police officers investigating
the case, notably by one named JL. Also, on several occasions the applicant
was brought before the court in connection with extensions of the time
limits for the pre-trial detention and solitary confinement and court
hearings. On these occasions, he had contact with police officers as
well as his counsel, the judge and the public prosecutor.

E. Contacts with prison staff

25. The applicant had contact with the
prison staff on numerous occasions every day, including when food was
dispensed, when food boxes were collected afterwards, when he opted
for outdoor exercise, when he bathed and when he chose to use the fitness
room.

26. In the period from March until December
1995, the applicant received roughly fifty lessons in English and French
from one of the prison teachers, thus once a week and for approximately
1 hour and 15 minutes.

27. In addition, the applicant visited
the prison chaplain once a week for about one hour in the latter's office.

28. Furthermore, during the period from
14 December 1994 until 28 November 1995, the applicant had contact twelve
times with a welfare worker, it appears for the last time, on 11 December
1995, when the applicant stated that being in solitary confinement (voluntarily
since 28 November 1995) was getting him down so much that he would probably
choose to leave it. Furthermore, he stated that he had no immediate
problems with which the social worker or the Prison and Probation service
(Kriminalforsorgen) could assist him. Instead, he talked about
the problems that the case had caused him, including the fact that he
felt betrayed by people whom he thought were good friends.

29. In the same period, the applicant
was treated by a dentist a couple of times and by a physiotherapist
thirty-two times.

F. Contacts with doctors

30. During the applicant's detention
on remand in solitary confinement from 13 December 1994 until 28 November
1995 medical inspections were carried out twenty-seven times by a doctor.

31. From the prison medical journals
submitted it appeared, among other things, that the applicant from 13 December
1994, the day of his arrest, at 8 p.m. until 14 December 1994 12.30 p.m.
was placed in an observation cell, as he had stated that he suffered
from claustrophobia and had said that he was contemplating suicide.
During this period he was observed thirty-six times by the prison staff
and twice by nurses. He was given a sleeping pill for that night (and
for the following nights during a week).

32. On 11 January 1995 a doctor attended
the applicant and refused to prolong the prescription for sleeping pills.
The doctor established that the applicant had no complaints of claustrophobia
and advised him to do “physical exercise” to achieve natural fatigue
instead of chemical, tablet-induced sleep.

33. At the beginning of/mid January 1995
the applicant went on a hunger strike, although he drank fruit juices.
In this connection the applicant was monitored every day on 16, 17 and
18 January 1995 by nurses and doctors.

34. On 17 January 1995 the applicant
told a doctor that he was determined to starve himself to death. The
prison doctor informed him of the relevant Danish regulation, which
prescribes respect for the desires of mentally competent persons, even
the desire to die. The doctor found the applicant mentally capable and
not abnormal for the purposes of taking this decision. The doctor received
and accepted the applicant's refusal of medical intervention (artificial
feeding at any future potentially fatal weakening of the applicant's
health). The doctor furthermore found the applicant physically normal
and without any acetone smell (usual occurrence at fasts). The doctor
prescribed him a sleeping pill for that night. According to the prison
rules, the doctor also requested a psychiatric assessment of the applicant
– a requirement when inmates go on hunger strike even if no signs
of mental disorder are found.

35. The following day, on 18 January
1995 the applicant informed a doctor that he was drinking but that he
expected to be dead within three weeks. The doctor found the applicant
normal and without any signs of dehydration. As to the applicant's mental
health, the doctor waited for the psychiatric examination, which was
scheduled to take place on the same day. The latter concluded:

“Visit to a thirty-year-old male, charged with
Article 191[of the Penal Code (straffeloven)], of which, according to him, he is innocent.
He is now carrying out a hunger strike, as a protest against his perception
that the press and others have convicted him in advance, and he is fully
aware of the consequences of such an act and is at present writing farewell
letters, his will, etc. Diagnosis: situational reaction.”

36. Due to the applicant's decision to
continue his hunger strike, the prison doctor ordered that twice a week
he be checked by a doctor, be weighed and have his urine checked for
ketonic substances which may occur during fasting. The applicant decided
to start eating again at the end of January.

37. Once, in March 1995 an EEG scanning
was carried out, notably to check the applicant for epilepsy.

38. On 1 May 1995 a doctor attended the
applicant because he complained of continuous pain in his lower back.
The doctor ordered that he be given an extra mattress and referred him
to a physiotherapist.

39. On 12 December 1995 the applicant
decided to leave the solitary confinement he had volunteered for since
28 November 1995. Moreover, having volunteered for kitchen duty, he
was attended to by a doctor, as the chief consultant of the Copenhagen
Prisons had stated that inmates with indications of for instance mental
disorders or significantly deviating conduct were not accepted for kitchen
duty.

G. Contacts with nurses

40. During the applicant's detention
on remand in solitary confinement from 13 December 1994 until 28 November
1995 medical inspections were carried out forty-three times by a nurse.

H. The trial against the applicant

41. After
the solitary confinement had been lifted on 28 November 1995, the applicant's
detention on remand was prolonged several times by the courts until
14 May 1996, when the High Court sitting with a jury acquitted the applicant
of the drug offences. However, on the basis of the applicant's
confession he was convicted of aggravated tax fraud and sentenced to
8 months' imprisonment and an additional fine of DKK 875,000 (or in the
alternative 60 days' imprisonment).

42. By a City Court judgment of 21 June
1996, a co-accused, MP, who in the meantime had been extradited from
the USA, and PL were convicted of the cocaine smuggling.

I. The compensation proceedings before the City Court

43. On 12 July 1996, the applicant claimed
compensation for pecuniary and non-pecuniary damage pursuant to Section
1018a of the Administration of Justice Act for having been detained
from 14 December 1994 until 14 May 1996. The total claim for compensation
amounted to more than DKK 19 million, thereof DKK 10 million for injury
to his feelings and reputation. In support of the latter counsel referred
to the unusually long, unjustified pre-trial detention, the massive
press attention given to the case, to the fact that the applicant was
a well-known person and that the case therefore had been unusually and
extraordinarily insulting to him. The prosecution first considered the
claim, and then in June 1997 it was brought before the City Court.

44. In a letter of 10 July 1997 counsel
stated that she also wished to invoke Article 3 of the Convention and
for this purpose she requested that a report be procured from the Legal-Psychiatric
Clinic (Retspsykiatrisk Klinik) concerning the applicant's mental state
of health during and after his detention on remand. On 18 September 1997
the City Court complied with his request, and the report was submitted
on 19 January 1998 stating, inter alia:

“The subject is a now 32-year-old male, who
had never exhibited any signs of a mental disorder until just over three
years ago. From his early youth and until 1992 he was a successful competition
swimmer. As from 1990 he was self-employed in a business which he ran
successfully until his arrest in December 1994. Until his arrest he
seems always to have functioned well. He has never abused any drugs
or alcohol.

During this examination he was found of normal
to good intelligence. There is no basis for assuming that he suffers
from epilepsy or any other organic brain disease. [The applicant] states
having delusions of persecution and that he suffers from megalomania,
and he appears distrustful and on guard. His perception of reality is
lacking to such an extent that he can be characterised as psychotic.
A final clarification of his illness cannot be made, but most likely
he suffers from a paranoid psychosis. Since his release, probably due
to his psychotic condition, the [applicant's] way of living has been
affected by a considerable and vagrant travel activity, which to some
degree has been characterised by a lacking capability to maintain human
contacts, to make bond or to root himself in localities.

On the basis of the information available it
must be assumed that [the applicant's] mental suffering coincided with
the period when he was detained on remand in solitary confinement. Moreover,
taking into account [the applicant's] distinct personality and mental
vulnerability, it is probable that the out-break and the progress of
[his] illness are causally linked to the fact that he was solitary confined
during a longer period”.

45. In addition, statements of 30 March and
4 May 1998 from the Medico-Legal Council (Retslægerådet) were submitted before the City Court. In the
former it was stated inter alia:

“... the Medico-Legal Council states that until
about three years ago [the applicant] did not seem to exhibit any signs
of a mental disorder or personality disorder. He is of good intelligence.

During his prolonged pre-trial detention and
solitary confinement in the period from December 1994 until May 1996,
he developed a psychosis, characterised particularly by failing perception
of reality and grandeur. It is difficult to fix the exact time when
the psychosis developed during the pre-trial detention. At a psychiatric
visit on 18 January 1995 no psychosis-like symptoms were found, but a
“situational reaction” and a hunger strike. During the forensic
psychiatric examination - completed in January 1998 - he was found both
by clinical psychiatric testing and by psychological testing to be psychotic,
probably suffering from a paranoid psychosis (mental disorder with delusions).

In the Medico-Legal Council's view it is very
difficult to establish [the exact cause for the applicant's mental illness],
but it is reasonable to assume that the considerable and long lasting
mental strain which the case involved, presumably in conjunction with
a distinct personality characterised by sensitivity and vulnerability
significantly influenced the progress of the mental illness. The solitary
confinement was a particular and severe mental strain, but also other
circumstances like the charge and the subsequent indictment may have
contributed to the progress of the applicant's mental disorder.”

In the latter the Medico-Legal Council
supplemented:

“ ... The Council finds it substantiated that
the main diagnosis is paranoid schizophrenic and not a post traumatic
stress reaction, as the condition is a psychosis-like condition. But
heavy mental strain is one of the prerequisites both for development
of [the applicant's] psychosis and for the development of a post-traumatic
stress reaction, and in addition to the psychotic symptoms [the applicant]
exhibits symptoms which are characteristic of a post-traumatic stress
reaction (irritability, concentration difficulties, sleeping difficulties,
nightmares, depressive tendencies with suicidal thoughts).

... the Council cannot assess or make any statement
as to whether the mental disorder is permanent.”

46. Moreover, an assessment of 3 August
1998 by the National Board of Industrial Injuries (Arbejdsskadestyrelsen) was submitted as to the applicant's
degree of disablement and loss of working capacity as a result of his
mental illness. The Board estimated that the degree of the applicant's
disablement amounted to approximately 30 % and that he had lost 1/3 of
his working capacity.

47. During the proceedings before the
City Court, the applicant and fifteen witnesses were heard. The witnesses
testified about their knowledge of the applicant's income, businesses
and possessions, and about their observations of the applicant before,
during and after the criminal proceedings. None of the doctors or the
nurses that had carried out the medical inspections of the applicant
during his pre-trial detention in solitary confinement were heard or
summoned before the City Court. With regard to his behaviour during
this period i.e. from 13 December 1994 until 28 November 1995 the following
witnesses testified in so far as relevant:

48. The applicant's mother stated, among
other things, that she felt that it was worst for the applicant during
the detention period when he was also solitary confined. Thereafter,
he became more human and spoke more coherently. During the solitary
confinement he wrote some letters with weird contents, including a letter
with incomprehensible presentation of how the universe works. She had
talked with counsel about getting a psychologist in from outside, but
it was too difficult to cope with and nothing came of it. She would
describe the difference in the applicant's behaviour before and after
by saying that he used to be dynamic, committed and extrovert but had
become grumpy and inaccessible.

49. The applicant's cousin stated, among
other things, that the applicant seemed deeply unhappy and preoccupied.
Often he was just listening. He had also changed appearance, having
grown a big beard and lost weight. The applicant became better as time
passed, as if he had found some peace.

50. The prison chaplain stated, among
other things, that the applicant moved with great care around the grounds
and walked practically sideways along the wall. He moved like a person
who had done no exercise and seemed timid. The applicant needed exercise,
both physically and mentally. He had a great feeling of powerlessness.
The applicant seemed different than other inmates, like a stranger in
that he could both think and talk and was not already broken. The chaplain
found that in general persons detained in solitary confinement lose
their concentration. This was also the case as regards the applicant.
The applicant cheered up and felt stimulated by the visits to the chaplain
and it had been difficult to end the consultations as the applicant
kept finding new subjects and knew which subjects were interesting to
the chaplain.

51. The prison teacher stated, among
other things, that the applicant from the first day seemed desperate.
Subsequently he appeared resigned. On his index card of 18 September
1995, the teacher had noted that the applicant got more and more depressed.
The applicants' physical condition worsened, he got careless about himself,
both concerning clothing and hygiene. The applicant read a lot, although
he encountered difficulties in concentrating.

52. Police officer JL, who investigated
the case against the applicant and regularly kept visits to the applicant
under surveillance, stated among other things, that the applicant's
mental state appeared the same, whether questioned in the presence of
his counsel or receiving visits. At some time the applicant turned his
sports jersey the wrong side out as he did not wish to be like everybody
else. He wanted to be a loner.

53. During the proceedings before the
City Court the applicant raised his claim for compensation to DKK 22,556,334.
By judgment of 1 October 1998 the City Court granted the applicant compensation
in the amount of DKK 790,475 and stated inter alia:

“... Having regard to the findings on the evidence
in the High Court's verdict of 14 May 1996, and to the evidence produced
during these proceedings, the court finds it established that an agreement
had been concluded between PL and MP on the smuggling of cocaine from
Brazil to Denmark so that the cocaine was to be hidden in a consignment
of papaya fruits. Accordingly, in Brazil MP placed the cocaine in a
pallet with green papaya fruits to be imported by the firm..., from
which [the applicant] had ordered the fruits. However, PL had tricked
[the applicant] into establishing ... a health firm, and ordering the
papaya fruits via this firm by stating that the import of green papaya
fruits was to cover smuggling of diamonds, although to PL cocaine was
involved. After the arrival [of the papaya fruits] complications arose
whereby the smuggled cocaine was discovered.

[The applicant] had taken initiatives as to the
potential commercial exploitation of green papaya fruits for health
products, etc.

The court finds that [the applicant] has exhibited
considerable contributory negligence by embarking on an agreement with
PL on the smuggling of diamonds from Brazil. He knew that PL was a trained
gemmologist, but their acquaintance was of recent date and his efforts
to ensure that PL's criminal intention was limited to diamond smuggling
were poor. PL's statement to the effect that at some time he briefly
remarked to [the applicant] that he had previously tried to smuggle
cocaine is contested by [the applicant] and no decisive weight has been
attached to it in this assessment of the evidence.

...On the evidence [before it] the court finds
that [the applicant] started establishing [the health firm] to be in
charge of the import of papaya fruits etc. after having agreed with
PL to assist in smuggling diamonds from Brazil hidden in consignments
of papaya fruits. According to the evidence it cannot be excluded that
[the applicant] also intended to obtain a commercial profit from [the
health firm]. However, having regard to the applicant's knowledge of
the discovery of the cocaine and to the police interviews in general,
the court finds that [the applicant] should have realised that the investigation
theory of the police was that [his established health firm] was only
a cover for the import of cocaine, and that any profit from the sale
of health products made from papaya fruits was quite immaterial. Furthermore,
the court notes that [the applicant's] rather experimental/impulsive
way of starting up his firm was suited to strengthen this assumption
by the police, and that the applicant should have realised this.

After the police had found the cocaine and after
the press publicity on 26 October 1994, but before his own arrest, [the
applicant] chose together with PL to agree on a false statement about
the background of his import of papaya fruits, ...[the story about RS
and RB] supported by construed diary notes. [The applicant] maintains
that he asked PL repeatedly at this stage whether PL had anything to
do with the cocaine. Despite PL's denials [the applicant] should have
suspected serious mischief at least at this stage.

[The applicant] was arrested on 13 December 1994.
He did not change his statement until 26 September 1995, when during
an interview [with the police] he told about the planned diamond smuggling.
This statement was repeated at the hearings before the court on 28 and
30 November 1995 and then maintained. The solitary confinement was terminated
at the court hearing on 28 November 1995.

... accordingly, the court finds that [the applicant]
has exhibited contributory negligence by way of his suspicious conduct/failure
to clear himself of suspicion, partly by having embarked on the alleged
smuggling of diamonds and taking relevant steps, having construed and
made use of a false cover story and having failed to explain the true
facts of the case until the autumn of 1995, whereby he must also have
realised that with this course of events in the autumn of 1995 he himself
had considerably contributed to causing doubts about the correctness
of his present statement, cf. in this respect [the High Court decision
of 15 January 1996 as to the continued pre-trial detention].

The court finds that the contributory negligence
exhibited by [the applicant] therefore entails that he has basically
forfeited the right to compensation for the harm inflicted on him by
the arrest and the pre-trial detention...

In accordance with the opinion of the Medico-Legal
Council the court finds that the applicant did not show any signs of
mental disorder or personal disorder [before his arrest], but that during
the prolonged pre-trial detention and solitary confinement he developed
a psychosis, particularly characterised by a failing perception of reality,
delusions of reference as well as delusions of persecution and of grandeur.
It is impossible to fix the exact time when the psychosis developed
during the pre-trial detention as no psychosis-like symptoms were found
at a psychiatric visit on 18 January 1995, but a “situational reaction”
and a hunger strike, whereas in the forensic psychiatric examination
- completed in January 1998 - [the applicant] was found psychotic, probably
suffering from a paranoid psychosis (mental disorder with delusions)
...

Particularly concerning the European Convention
on Human Rights and the basis of responsibility in general:

... generally, any kind of deprivation of liberty
constitutes a strain on the person involved. Such a strain manifests
itself even more with regard to pre-trial detention in solitary confinement,
which entails complete exclusion from association with other inmates,
and visits only to a limited extent and subject to surveillance. In
some cases this strain may, for a particular individual, prove to have
consequences beyond what is generally foreseeable and predictable by
the legislator owing to that individual's mental preparedness and life
situation in general.

It must be presumed that the legislator considers
solitary confinement necessary for the sake of the investigation, particularly
in grave criminal cases committed by a group of persons acting in a
more organised way, in which the clearing up to a great extent depends
on the persons' lack of opportunities to harmonise their statements
mutually and with others.

In order to balance the interests of the detainee
against the interest of the society in prosecuting crimes, the legislator
has laid down provisions on solitary confinement cf. sections 770a to
770c of the Administration of Justice Act. Thus, the use of totally
solitary confinement is limited to a continuous period of eight weeks
[except for] cases, where the charge concerns an offence being punishable
under the law by imprisonment for six years or more, which are not subject
to any restriction in time. The charge against [the applicant] for drug
offences under Article 191 of the Penal Code satisfies this condition.
Under section 770b, the courts must check whether the purpose of the
solitary confinement can be fulfilled by less radical measures, and
they must ensure that the measure is not disproportionate to the importance
of the case and the sanction that may be expected if the person charged
is found guilty. Furthermore, under this provision the court must “take
into account the special potential strain on the person charged owing
to his youth, or physical or mental weakness” when it orders solitary
confinement.

In the opinion of the court, the legislator has
thus realised that solitary confinement may at worst result in an unintended
harmful effect owing to the mental weakness of the person charged. This
is attempted countered by imposing a duty on the Prison and Probation
Service staff (kriminalforsorgens personale), including the prison doctor,
to be aware of any danger signals, according to which psychiatric monitoring
may prove relevant.

The question of medical monitoring may be raised
by everybody who is in contact with the detainee, including counsel,
as well as the detainee himself and the prison staff. If so, the judge
responsible for a continuation of the pre-trial detention in solitary
confinement must decide whether the interest of society in prosecution
must give way for the mental wellbeing of the person charged, with particular
regard to the risk of permanent mental harm.

It is a matter for the courts to check and apply
the provisions of the law compared with general principles of law, including
the principles expressed in the European Convention on Human Rights...
as incorporated into Danish law by Act No. 285 of 29 April 1992.

Article 3 of the European Convention on Human
Rights sets out that “no one shall be subjected to torture or to inhuman
or degrading treatment or punishment”. Article 5 of the Convention
provides for the situations in which a person may exceptionally be deprived
of his liberty.

[The applicant's] detention on remand was ordered
due to the risk of influencing others and the risk of evasion, and solitary
confinement was imposed in addition due to the risk of influencing others.

Pursuant to the case-law of the European Commission
of Human Rights, a decision as to whether Article 3 of the Convention
is violated depends on a specific assessment of the circumstances of
the case, particularly the stringency of the solitary confinement, its
duration, the purpose of the solitary confinement and its effect on
the inmate's health. In addition to the specific elements of the case,
the court has taken into account the assessments made by the European
Commission of Human Rights, the Human Rights Committee of the United
Nations (CCPR), the Committee against Torture of the United Nations
(CAT), and the Committee for the Prevention of Torture of the Council
of Europe (CPT) on the conditions of solitary confinement in Denmark
as well as national deliberations, most recently report (betænkning) No. 1358/1998 on pre-trial detention in solitary
confinement...

The court finds that the pre-trial detention
in solitary confinement and the subsequent ordinary pre-trial detention
did not involve any violation of Article 3 of the Convention by virtue
of its duration, form or conditions, as seen in relation to the nature
of the suspected offence. The same applies as to the effect of the imprisonment
on [the applicant's] health.

However, the court finds that the detention on
remand in solitary confinement has had a mental consequential effect
to [the detriment of the applicant and that it] occurred under such
circumstances as to trigger liability for the Government [for the following
reason].

It must be assumed, even without the establishment
of committed human errors e.g. by failing monitoring, that incidents
may occur, where the detained subsequently are found to have developed
psychiatric damage, which to a significant extent has been caused by
the pre-trial detention [as opposed to normal predictable mental after-effects],
and which may be entailed by the usual administrative rates fixed to
cover non-pecuniary damage.

In the present case, having regard to the medical
statements, the court finds it established that [the applicant] suffers
from a paranoid psychosis (mental disorder with delusions) and a traumatic
strain-reaction, and that the detention on remand to a very significant
extent caused this.

The public authorities have a special duty of
solicitude for detainees, which entails liability to compensation should
they fail to comply with this duty. With regard to solitary confinement
the court finds that a strengthened degree of culpability must be employed
towards the public authorities.

It may be difficult for the surroundings to recognise
in particular a paranoid psychosis. However, having regard to the information
provided by [the applicant] about his claustrophobia and his contemplation
of suicide, which resulted in his placement in an observation cell,
the court finds that [the applicant], maybe already at the time of the
arrest, behaved in such a way that could and should have caused a closer
observance in the period to follow, than were actually performed of
[the applicant's] mental development, in any case subsequent to [the
applicant's] hunger strike in January 1995. The court finds that the
authorities carry the burden of proof that the [above] circumstances
have had no influence on the psychiatric damage incurred. Thus, the
court finds that it cannot be excluded that the mental damage to a significant
extent could have been avoided or reduced by a more thorough observation,
and that the courts [had such an observation been carried out] would
have had an opportunity for balancing the risk of (permanent) damage
against the interest of the investigation cf. section 770b of the Administration
of Justice Act.”

J. The compensation proceedings before the High Court

54. Both the applicant and the prosecution
appealed against the City Court judgment of 1 October 1998 to the High
Court of Eastern Denmark.

55. Before the High Court a letter of
5 October 1998 was submitted containing an account of the nurses' monitoring
of the applicant during his pre-trial detention in solitary confinement
during the period from 13 December 1994 until 28 November 1995. Thus, as
to the forty-three medical inspections which had been carried out by
nurses the head of nursing stated inter alia:

“. It does not appear at any time from the
nurses' report books summarising the visits that the nurses suspected
that [the applicant] was developing a paranoid psychosis. Considering
the nurses' background both in the prison service and the psychiatric
system, one would expect that the nurses who made these visits would
have observed it, if [the applicant] had been developing a psychosis-like
condition. It should be added that the nurses' visits in the south wing
[where the applicant was placed] were performed by the “permanent
nurses” of the south wing, who were [therefore] able to monitor any
changes in [the applicant's] mental condition.”

56. The head of nursing also testified
before the High Court and explained the routines and observations of
the prison nurses, including that the applicant gave cause for discussion
only once at the nurses' morning conferences, namely when he was on
his hunger strike. Otherwise, he was considered “nice and talkative”

57. A similar account was made as to
the doctors' monitoring of the applicant, i.e. twenty-seven medical
examinations carried out by doctors in the relevant period. In a letter
of 2 October 1998 the chief consultant of the Copenhagen Prisons (Københavns
Fængsler), a specialist of internal medicine and medical gastroenterology
concluded inter alia:

“that [the applicant] was not at any time found
to be mentally ill to a major extent corresponding to the otherwise
obvious and probable harmful effect of the solitary confinement ordered
by the courts;

that at no time [the applicant] was found to
be borderline psychotic, not to mention psychotic (thus not suffering
from a paranoid psychosis either);

that the psychiatrist's assessment of [the applicant]
on 18 January 1995 was carried out for administrative reasons only in
connection with [the applicant's] short-term refusal to eat, which had
caused no complications (it was not a total fast as [the applicant]
drank juice). The psychiatric assessment was not carried out due to
an uncertainty on the prison doctor's behalf as to [the applicant's]
mental state, [since] neither the ordinary prison doctor nor, in particular,
the psychiatrist had found [the applicant's mental state] very remarkable
or even mentally threatened. [Instead] the psychiatrist made the said
administrative assessment to make doubly sure that [the applicant] was
found competent [to cope with the situation] concerning his refusal
to eat.”

58. The chief consultant did not question
that the applicant was found to be psychotic during the period of psychiatric
observation from 8 December 1997 until 19 January 1998, but underlined that
the applicant had not been found to be significantly mentally ill, borderline
psychotic or psychotic during the period of detention from 13 December
1994 until 14 May 1996. None of the highly qualified and well-trained
doctors and nurses attending the applicant during that period had noted
any signs of mental disorder in the applicant. He pointed out that the
said doctors and nurses had plenty of experience with examining inmates
held in solitary confinement and that they knew what telltale signs
of oncoming or existing mental disorder to look for when examining such
inmates. Accordingly, in the chief consultant's opinion, it could not
established that the mental disorder, found when examining the applicant
a year and a half after the determination of his detention, actually
began during his detention at the Western Prison.

59. The chief consultant also provided
a general account on visits and assessments of detainees. He mentioned
that such may take place at counsel's request. In this respect the letter
stated as follows:

“Concerning [the applicant] it should be noted
in this connection that the doctors [of the Prison and Probation Service]
have received no inquiries during the said detention period from [the
applicant's] prosecutor or two counsel, apart from the letter of 18 January
1995 from [the applicant's] first counsel and the letter of 21 June
1995 from [the applicant's] second counsel.

In the letter of 18 January 1995 [the first
counsel] stated that he found the applicant very depressed, and he asked
that doctors attend to [the applicant]. No letter of reply was sent
to [the first counsel] since he had not requested such, and since he
had stated in the letter that he had not notified [the applicant] that
he had written the said letter (all other things being equal, a reply
would require [the applicant's] specific consent and thus indicate to
[the applicant] that his counsel had sent a letter without his consent),
but the most important reason for not sending a reply was the fact that
[the applicant] had not been found depressed in connection with a medical
assessment, including the psychiatric assessment made on 18 January
1995. If the latter had been the case, a letter of reply would have
been forwarded to counsel nevertheless, possibly even without [the applicant's]
specific (informed) consent, and ... also from the prison doctor to
the judicial instances via the Prison and Probation Service.

In the letter of 21 June 1995 [the second counsel]
asked that herbal medicine ... be given to [the applicant].

Otherwise, [the two counsel] have not given notice
orally, by telephone or in writing about any deviant state observed
as to [the applicant]. [It should be noted in this respect that notably
[the second counsel] and the doctors [of the Prison and Probation Service]
are in regular good contact concerning the inmates' state of health
and particular complex matters related thereto, also in relation to
court measures, such as solitary confinement]. The doctors [of the Prison
and Probation Service] are pleased to receive notices from everybody
(including school teachers, ministers of religion etc. within and outside
[the Prison and Probation Service], not to mention the applicant) regardless
of the nature of the notices and the information since, all other things
being equal, such notices give the doctors better possibilities of performing
their work of ensuring the best possible conditions for the inmates'
health subject to the terms ordered by the courts. “

60. The chief consultant was heard as
a witness before the High Court. He explained in more general terms
the routines of the prison doctors and the attention focused on inmates
held in solitary confinement for long periods and he gave further description
of some of the findings noted in the medical record sheet relating to
the applicant.

61. The applicant's case was discussed
at the daily conferences between the doctors. The witness himself never
saw the applicant. There were no signs that the applicant was characterised
by incipient isolation syndrome. The symptoms of this syndrome are difficulties
of concentrating, sleeping trouble, disturbed perception of time and
space, disturbed interpretation of sensory impulses, depression, possibly
with self destruction and thought of low self-esteem, fits of anxiety,
lack of interests in surroundings. This may develop into a borderline
psychosis, the symptoms being delusions/paranoia, feeling of unreality
and into an actual psychosis. When he suspects incipient isolation syndrome,
he writes to the prison management about it with a view to forward it
to the counsel and the prosecutor. In 1998, for example, the witness
wrote such letters in thirty-two cases. He did not know exactly how many
letters like that he wrote in 1995, but he has not changed practise
in this respect since 1992.

62. As to the notes in the medical record
of 17 January 1995, when the applicant was on hunger strike, the chief
consultant specified that doctors always assess whether a person is
mentally competent and understands the consequences of a hunger strike
and that all doctors have psychiatric training. He would rather call
the applicant's hunger strike a refusal to eat, since he drank plenty
of water and juice, which contains calories and nourishment. According
to the Medical Act (Lægeloven), a doctor is not allowed to interrupt a competent
person's hunger strike by force. He may try to procure consent to treatment
when the person becomes weak. The applicant granted no such consent.
Force may be used against mentally ill persons.

63. As to the psychiatric attendance
on 18 January 1995 the witness stated inter alia that the applicant was found to suffer from a situational
reaction such as many new detainees do. It is not uncommon in the Western
Prison that inmates state their intention of going on hunger strike.
The applicant was not in any bodily danger, but might in time become
mentally endangered. Thus, the close observation of the applicant continued.

64. The Director of the Copenhagen Prisons
gave his account before the High Court of the monitoring of the applicant
during the latter's pre-trial detention and period of solitary confinement.
In a letter of 7 October 1998 he stated, among other things:

“For the purpose of this account the prison
management has procured information on [the applicant's] stay in the
prison from the chief consultant, the head of nursing, the welfare worker,
supervisory staff [at the applicant's unit] and from his workplace in
the prison.

Supervisory staff in the south wing [which monitored
the applicant during his entire period in solitary confinement] stated
that despite the solitary confinement he functioned well, knew how to
structure his everyday life and occupy himself, and he did not in any
way appear mentally conspicuous.

At no time did the staff find any reason to contact
the health staff to obtain a psychiatric assessment, which is otherwise
an initiative very frequently taken by staff.

The principal officer of the west wing [to which
the applicant was transferred after the solitary confinement] and the
staff in the kitchen where he worked have stated the same.

[The applicant's] welfare worker who regularly
talked with him during his entire detention has also stated the same.

With reference to the comments of the court [in
connection with the compensation proceedings] decisive importance must
be attached, however, to the question whether these assessments are
supported by the doctors' monitoring of [the applicant].

The chief consultant has provided the appended
statement on the case. For details please refer to this assessment.

It appears from the chief consultant's statement
that during his entire period of detention [the applicant] has been
extremely carefully monitored and assessed by doctors.

Visits by doctors, including psychiatrists, may
be carried out at the request of the health staff of the Copenhagen
Prisons, but may also be carried out at the request of staff, counsel
or the prosecutor. In [the applicant's] case, counsel only once requested
a visit from a doctor [i.e. the first counsel in his letter of 18 January
1995], which had, however, already been made by a psychiatrist in connection
with the hunger strike, cf. below.

During all visits, doctors and nurses of the
Copenhagen Prisons have their attention directed at signs of psychoses,
both obvious signs and minute signs. They are, of course, particular
attentive to such signs in a case of solitary confinement, which is
in itself a stressful measure.

If, in connection with a visit, a doctor finds
even the slightest suspicion that the inmate is or may possibly be on
his way to become mentally ill, a statement to that effect is given
to counsel and the prosecutor.

This was not done in [the applicant's] case,
as there was never at any time any suspicion of a mental illness.

The reason why [the applicant] was attended to
by a psychiatrist on 18 January 1995 at the initiative of the Copenhagen
Prisons was not that a mental illness was suspected, but solely that
the internal guidelines prescribe this when inmates go on hunger strike.
Anyway, no psychopathological characters were found at the examination,
but a situational reaction ...Particularly referring to the chief consultant's
statement, the Copenhagen Prisons repudiate that [the applicant] has
been subjected to failure of health monitoring. During his entire stay,
[the applicant] was regularly visited by doctors and nurses, and these
visits have not given any rise to any suspicion of mental disorders...”

65. Moreover, by letter of 8 October
1998 the Director of the Western Prison gave his account of the monitoring
of the applicant during the latter's pre-trial detention and solitary
confinement. The letter read inter alia:

“After the passing of the judgment in the compensation
proceedings on 1 October 1998 I have had conversations with the following
persons about [the applicant's] stay in the Copenhagen Prisons:

DW, then social worker in the east unit, states
that [the applicant] was an intelligent and interesting young man. During
his stay [the applicant] started painting. He read a lot. His behaviour
was not conspicuous. He seemed present during conversations. He was
bitter and angry with the police and felt unjustly treated. These thoughts
did not seem pathological to DW.

JL, prison officer, ... , who knew [the applicant]
during his entire stay in the south wing, stated that he painted, was
active and seemed to function well. He was good-humoured to be with
and was given a rather free rein. He was always ready with a gay remark.
He was considered by all staff as a person who functioned well and was
not conspicuous. He knew how to establish an everyday life. He felt
unjustly treated by the system and thought that solitary confinement
in general could be considered as some kind of torture.

CL, prison officer, ... , who also monitored
[the applicant] in the south wing, stated that he was not pathologically
conspicuous. He was quite ordinary to talk to. In the circumstances
he managed the solitary confinement incredibly well.

JEL... who was the foreman in the kitchen where
[the applicant] worked after the solitary confinement, stated that he
did not seem mentally conspicuous or affected by the long solitary confinement.

VB, principal officer, west wing, stated that
[the applicant] functioned well during his stay in the west wing after
the solitary confinement and did not seem affected by the solitary confinement.”

66. Additional statements from the Legal-Psychiatric
Clinic and the Medico-Legal Council were submitted on 29 April 1999 and
9 August 1999 respectively, and the applicant and several witnesses were
heard.

67. By judgment of 27 August 1999 the
High Court granted the applicant compensation in the amount of DKK 1,334,600
covering as follows:

non-pecuniary
damage DKK 100,000

lost earnings
DKK 125,000

loss of
working capacity DKK 1,022,000

disablement
DKK 87,600

68. The High
Court found that the applicant's mental illness was caused or mainly
caused by the solitary confinement, but pointed out that on the basis
of the medical statements before it, it was not possible to establish
when the mental disorder broke out or how it had progressed. On the
material before it, the court found it established that during his detention
the applicant had been treated in a proper manner. Thus, having regard
to the reason for the solitary confinement and the treatment of the
applicant during this period, the court found that in spite of the duration
of the solitary confinement and its serious effects on the applicant's
mental health, Article 3 of the Convention could not be considered breached.

69. The court found that compensation
for non-pecuniary damage was justified pursuant to section 1018a §
2 of the Administration of Justice Act for the deprivation of liberty
exceeding the sentence laid down in the verdict of 14 May 1996. However,
according to section 1018a § 3 of the said Act the applicant was found
to a considerable extent to have given rise to the measures himself,
due to so-called “own fault”, in the period between 13 December 1994
until 26 September 1995, when the applicant made the statement to the
police as to his participation in diamonds smuggling. Accordingly, a
sum of DKK 100,000 was found to be reasonable. Also, the compensation
for lost earnings was reduced due to “own fault”.

70. The amounts for disablement and loss
of working capacity were calculated on the basis of the Compensation
Act (Erstatningsansvarsloven), and the information on the applicant's
previous yearly income. Since no exact moment of injury could be established
the court chose 13 December 1994 as the starting point. Considering that
it was common knowledge to the authorities that solitary confinement
entails a risk of disturbing the mental health, and taking into account
the extraordinary and severe damage, which the long lasting detention
in segregation caused the applicant, the court found no reason to reduce
these amounts on the “own fault” considerations.

71. Finally, the High Court decided that
the Government should pay all the legal costs before the City Court
as well as before the High Court.

K. The compensation proceedings before the Supreme Court

72. Having been granted leave to appeal,
before the Supreme Court (Højesteret) the applicant claimed compensation in the amount
of DKK 18,618,602.36 for pecuniary and non-pecuniary damage. By judgment
of 5 September 2000 the Supreme Court reduced the amount to be paid in
compensation to DKK 1,109,600, covering as follows:

non-pecuniary damage DKK 0

lost earnings
DKK 0

loss of
working capacity DKK 1,022,000

disablement
DKK 87,600

73. The Supreme
Court agreed unanimously with the High Court that the solitary confinement
was the main reason for the applicant's mental suffering. Also, noting
that there was no reason to assume that the applicant had not been treated
in a proper manner during his detention on remand, it confirmed the
High Court's finding that the case disclosed no appearance of a violation
of Article 3 of the Convention.

74. Moreover, the Supreme Court upheld
the High Court's finding that to a significant extent the applicant
himself gave rise to measures taken against him, and pointed out that
the applicant's explanations during the criminal proceedings did not
leave an impression of being provided by someone who lacked ability
to act rationally.

75. As to the amounts regarding compensation
for disablement and loss of working capacity the Supreme Court confirmed
that it was common knowledge that solitary confinement entails a risk
of disturbing the mental health. On the other hand it found that the
applicant could not have foreseen, by his conduct and the measures to
which he was consequently subjected, that accordingly he would be induced
a permanent mental disorder causing loss of working capacity and disablement.
Therefore, the Supreme Court endorsed that the amounts covering compensation
for disablement and loss of working should not be reduced on “own
fault” considerations.

“We find that by participating in the papaya
project and by his attitude shown during part of the detention period,
notably by having actively opposed the investigation of the case, [the
applicant] is thereby excluded from obtaining compensation for these
claims pursuant to Section 1018a, Subsection 3 of the Administration
of Justice Act.”

A minority of two judges stated:

“When assessing the 'own fault' shown by [the
applicant], regard must be had to the difficult situation he was facing
and to the severity of the measure [he was subjected to], thus in our
view [own fault] should not influence the compensation to be awarded
to cover lost earnings as to the period after 12 October 1995 or non-pecuniary
damage as to the period after 26 September 1995. The case contains no
such special circumstances, which can justify a deviation from the administrative
rates fixed to cover non-pecuniary damage.

Otherwise agreeing with the High Court's reasoning
concerning each of the claims we find that the applicant, in addition
to compensation for loss of working capacity and disablement, be granted
DKK 250,000 covering lost earnings and DKK 106,800 covering non-pecuniary
damage.”

77. The Supreme Court decided that the applicant
pay legal fees in the amount of DKK 37,500 inclusive VAT.

II. RELEVANT DOMESTIC LAW

78. The relevant provisions of the Administration
of Justice Act read as follows at the relevant time:

Section 762

1. A suspect (ensigtet) may be detained on remand when there is a reasonable
ground for suspecting that he has committed an offence which is subject
to public prosecution, provided that under the law the offence may result
in imprisonment for one year and six months or more, and

(i)
according to information received concerning the suspect's situation,
there are specific reasons for assuming that he will evade prosecution
or execution of judgment, or

(ii)
according to information received concerning the suspect's situation,
there is specific reason to fear that, if at large, he will commit a
new offence of the nature described above, or

(iii)
in the circumstances of the case, there are specific reasons for assuming
that the suspect will impede the investigation, in particular by removing
evidence or by warning or influencing others.

2. ...

3. Detention on remand may not be imposed if the
offence can be expected to result in a fine or in light imprisonment
(hæfte)
or if the deprivation of liberty will be disproportionate to the interference
with the suspect's situation, the importance of the case and the sanction
expected if the suspect is found guilty.

Section 770a

1. At the request of the police the court may
decide that a detained shall be totally or partially excluded from association
with other inmates (solitary confinement) if

(i)
the detention on remand was decided pursuant to Section 762, Subsection 1 (iii),
and

(ii)
the purpose of the detention on remand requires solitary confinement
in order to prevent the suspect from influencing co-suspects though
other inmates or from influencing others by threats or in another similar
way.

2. Totally solitary confinement may not be imposed
for a continuous period of more than eight weeks unless the charge relates
to an offence which, under the law, may result in imprisonment for six
years or more.

Section 770b

Solitary confinement may not be initiated or
continued if the purpose thereof can be fulfilled by less radical measures
or if the measure is disproportionate to the importance of the case
and the sanction to be expected if the suspect is found guilty. Decisions
on solitary confinement must also take into account the special potential
strain on the suspect owing to his youth or physical or mental weakness.

Section 1018a

1. Any person who has been arrested or held in
custody as part of a criminal prosecution is entitled to compensation
for the damage suffered thereby if the charges are withdrawn or the
accused is acquitted...

2. Even if the conditions for granting compensation
under subsection 1 are not satisfied, compensation may be granted if
the deprivation of liberty cannot be considered proportionate to the
outcome of the prosecution, or if it is found unreasonable for other
particular grounds.

3. The compensation may be reduced or refused,
if the person charged has given rise to the measures himself.

III. THE FINDINGS OF THE EUROPEAN
COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT
OR PUNISHMENT

79. The CPT visited Denmark from 2 to
8 December 1990. With regard to solitary confinement it found inter alia the following (CPT/Inf (91) 12):

136. ... at the Western
Prison the CPT's delegation was able to observe at first hand the practice
of the solitary confinement of remand prisoners ordered by judicial
decision. Numerous allegations were made as regards the adverse effects
of such confinement. The CPT wishes to underline that, in certain circumstances,
solitary confinement could amount to inhuman and degrading treatment,
and that in any event all forms of solitary confinement should be as
short as possible. The question of solitary confinement is currently
being examined by the Danish authorities. The CPT, for its part, has
formulated several recommendations designed to strengthen the protection
of prisoners in this area. Emphasis is placed in particular on the importance
of the respect of the principle of proportionality between the requirements
of the investigation and placement in solitary confinement (a measure
which can have very harmful consequences for the persons concerned),
of an effective periodic judicial review of the solitary confinement,
and of the proper medical examination of a prisoner subject to such
a measure.

80. The CPT also visited Denmark from
29 September to 9 October 1996. Its findings with regard to solitary confinement,
and the condition of the Western Prison were the following (CPT/Inf
(97) 4):

3. Solitary confinement of remand prisoners by court
order

54. In the course of its ongoing dialogue with the Danish authorities,
the CPT has stressed that all forms of solitary confinement without
appropriate mental and physical stimulation are likely in the long term
to have damaging effects, resulting in deterioration of mental faculties
and social abilities. It has paid particular attention to the solitary
confinement of remand prisoners by court order, which can continue for
extended periods.

55. The Danish authorities have long recognised the importance of
this subject and, in 1990, the Minister of Justice commissioned a research
project to examine "any possible harmful effects of being remanded
in custody in solitary confinement". The results of that research
were published, in a report entitled "Remand in Custody and Mental
Health", in May 1994.

The research team found that: "...remand in custody in solitary
confinement versus non-solitary confinement involves the risk of harmful
effects on mental health" and that "...there is a greater
probability that those in solitary confinement develop mental problems
and are transferred to prison hospitals for mental reasons than those
who are not placed in solitary confinement". (cf. page 164 of document
CPT/Inf (96) 14)However, researchers found no proven link
between the length of judicially-ordered solitary confinement and prisoners'
mental health.

The report concludes that: "... the harmful effects of solitary
confinement are not in general such as to result in abnormalities in
the cognitive functions, e.g. concentration and memory". (cf. page
165 of document CPT/Inf (96) 14).

The Criminal Justice Review Committee is currently
examining the findings of "Remand in Custody and Mental Health",
with a view to re-assessing the rules governing placement in judicially
ordered solitary confinement. In addition, the same research team is
producing a follow-up study, which is to be published in the form of
a supplementary report.

56. The CPT welcomes the fact that the mental
health of prisoners in judicially ordered solitary confinement has been
the subject of a study. However, it feels bound to point out that, during
its 1996 visit, a considerable number of doctors, lawyers, prison staff
and other persons who have frequent contact with such inmates expressed
considerable surprise at the study's principal conclusion. In their
experience, prisoners subjected to lengthy periods of judicially ordered
solitary confinement frequently exhibited lapses in concentration, memory
loss and impaired social skills. These observations were borne out by
the Committee's own findings during its second periodic visit. Many
prisoners subject to judicially ordered solitary confinement complained
of symptoms including anxiety, depression, inability to concentrate,
irregular sleeping patterns, nausea and persistent headaches. In one
particular case, the delegation's psychiatric expert was of the opinion
that symptoms such as impairment of concentration, depressive mood and
suicidal thoughts could be attributed to the inmate's lengthy placement
in solitary confinement.

In short, notwithstanding the principal conclusion
of "Remand in Custody and Mental Health", the CPT considers
that there remain serious grounds for concern about the effects upon
remand prisoners' mental health of being placed in judicially-ordered
solitary confinement for prolonged periods.

57. In addition to stressing that all forms of
solitary confinement should be as short as possible, the CPT's 1991
report recommended that the Danish authorities take steps to ensure
that remand prisoners were only placed in solitary confinement in exceptional
circumstances which were strictly limited to the actual requirements
of the case. It also recommended that there be an effective judicial
review of placements in solitary confinement and that, where a placement
was prolonged, the reasons for such prolongation be set out in writing
(cf. paragraph 29 of document CPT/Inf (91) 12).

In their response, the Danish authorities asserted
that Danish law was already in accordance with these recommendations
and cited a steady fall in the number of remand prisoners being placed
in judicially-ordered solitary confinement.

58. The CPT welcomes the above-mentioned fall.
However, the information gathered during the second periodic visit would
suggest that - at least in respect of certain types of cases (serious
drugs offences, crimes of violence etc.) - the balance between the legitimate
requirements of a criminal investigation and the potentially harmful
effects of imposing solitary confinement is still not being struck in
an appropriate way. As an example, senior police officers, prosecutors
and judges with whom the delegation spoke agreed that it would be extremely
unusual were solitary confinement not to be sought (and granted) in
a case brought under Section 191 of the Administration of Justice Act
(which deals with serious drugs offences). It is also noteworthy that
a detailed examination of the court transcript of a randomly-selected
Section 191 case showed that no specific reasons had been given by the
judge for imposing solitary confinement; instead, he had simply cited
the statute which authorised him to grant the prosecutor's request.

Furthermore, although it is true that the statistical
information which has been supplied by the Danish authorities shows
a downward trend in the number of placements in solitary confinement,
it also indicates that the average length of solitary confinement has
increased. Indeed, in the course of the 1996 visit, the CPT's delegation
met a number of prisoners who had been subject to judicially ordered
solitary confinement for long periods of time (one for ten months, two
for six months and six for three months or more).

59. In the light of the information set out above,
the CPT considers that further action is required to ensure that the
safeguards in Danish law concerning the placement of remand prisoners
in solitary confinement are rendered fully effective in practice. The CPT recommends that steps be taken to ensure
that: - prosecutors are reminded that they should only seek a placement
in solitary confinement when this is strictly necessary in the interests
of a particular criminal investigation; - on every occasion when the
question of whether to impose or prolong solitary confinement is raised
before a court, the reasoned grounds for the decision which results
are recorded in writing; - prisoners are systematically informed in
straightforward language of the reasons for their placement in judicially-ordered
solitary confinement; - in the context of each periodic review of the
necessity to continue remand in custody, the necessity to continue a
placement in solitary confinement is fully considered as a separate
issue, bearing in mind the general principle that all placements in
solitary confinement should be as short as possible. The Committee also
invites the Danish authorities to consider introducing a maximum limit
on the total period for which a remand prisoner may be placed in solitary
confinement.

60. The effect upon remand prisoners of being
placed in judicially ordered solitary confinement can be exacerbated
by the imposition of prohibitions/restrictions upon their letters and
visits. The imposition of such restrictions lies within the sole discretion
of the police (although a prisoner may appeal to a court against the
imposition of restrictions). In the course of its second visit, the
delegation found that the police rarely if ever sought to prohibit letters
or visits; however, it was common for remand prisoners' letters to be
monitored and their visits supervised. In its report on the first visit,
the CPT recommended that the police be given clear instructions on the
circumstances in which such prohibitions/restrictions might be imposed
and required to state the reasons in writing for any such measures.
This recommendation has not been implemented by the Danish authorities,
who consider that the Administration of Justice Act already provides
sufficient safeguards in this respect.

In the view of the CPT, the current system of
police-imposed restrictions upon letters and visits still does not adequately
ensure that the measures adopted in a given case will be strictly proportionate
to the needs of the criminal investigation involved. Accordingly, the Committee recommends that the Danish authorities
take steps to implement its 1991 recommendation on this subject without
further delay. The CPT also recommends that, in the context of each
periodic review by a court of the necessity to continue remand in custody,
the question of the necessity for the police to continue to impose particular
restrictions upon a remand prisoner's visits and letters be considered
as a separate issue.

61. As regards the question of activities for
remand prisoners placed in judicially-ordered solitary confinement,
the Committee was pleased to note that the Ministry of Justice fully
agrees with the CPT's view that persons in solitary confinement should
be provided with access to purposeful activities and appropriate human
contact in order to counteract the effects of being placed in solitary
confinement (cf. page 165 of document CPT/Inf (96) 14). During the second
periodic visit, the delegation noted that efforts were being made to
achieve this objective in the establishments visited. The CPT recommends that the Danish authorities
pursue their efforts in this respect.

4. Conditions of detention in general

... b. the Western Prison in Copenhagen

i. introduction

64. Since the CPT's first visit to the Western
Prison in 1990, the establishment has become the reception facility
for all of the Copenhagen Prisons (a role previously filled by the Police
Headquarters Prison, cf. paragraph 62, above); the Western Prison now
has a turnover of between 8,000 and 10,000 inmates per year. With an
official capacity of 439, on the first day of the 1996 visit the establishment
was holding 426 inmates. (As compared to some 403 (with an official
capacity of 430) at the time of the first periodic visit) ...

81. The Danish Government replied inter
alia as follows:

According to the existing Danish legislation,
only the courts can decide whether a suspect may be placed in solitary
confinement and that such a decision requires that certain conditions
are met, i.e. that the suspect is remanded in custody because he or
she must be prevented from influencing other suspects through other
inmates or in any other way. Total isolation was only possible for a
maximum period of eight weeks unless the person involved was charged
with a criminal offence punishable by six years' imprisonment or more.
Furthermore, the principle of proportionality must be observed – hence,
if the purpose of the solitary confinement may be achieved through other
means of less vital importance, or if the solitary confinement is disproportionate
to the importance of the case and the legal consequences to be expected
if the suspect is found guilty, solitary confinement must not be used.
When deciding this matter, the judge must also take into account the
strain, which solitary confinement may put upon the suspect due to the
suspect's young age or mental or physical weakness. The Government also
pointed out that the number of persons kept in solitary confinement
was decreasing significantly over the years and that the conditions
to be met in order to keep someone in solitary confinement were among
the strictest in Europe;

Only the courts can decide to detain a suspect
in solitary confinement and the courts' decisions regarding this issue
must explain in detail the reasons for this decision;

The staff of the Danish Prisons has been instructed
to inform the prison doctor/nurse in all cases where a prisoner wishes
to get medical attention. The prison doctor will specifically look not
only for somatic inmates but also psychiatric problems when examining
an inmate. It is always possible for the doctor to inform the prison
management and in certain cases also the public prosecutor, the inmate's
counsel and the courts of whether and to what extent a psychopathological
symptom ascertained must be deemed to have been caused or worsened by
solitary confinement and what the inmate's prognosis must be deemed
to be under continued solitary confinement. Such medical information
will form part of the considerations of the courts when deciding whether
solitary confinement is proportionate in the case in question;

The Administration of Justice Act contains specific
provisions concerning prohibitions/restrictions of the prisoners' correspondence
and visits, and a prisoner who is subjected to such restrictions has
a right to request that the decisions be brought before a court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3
OF THE CONVENTION

82. The applicant complained that the Danish Authorities
subjected him to treatment contrary to Article 3 of the Convention since
they detained him in remand in solitary confinement from 14 December
1994 until 28 November 1995 allegedly in spite of being aware that solitary
confinement damages the mental health of a person. Article 3 reads as
follows:

“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”

A. The parties' submissions

83. The applicant found that his pre-trial detention
in solitary confinement from 14 December 1994 until 28 November 1995 by
itself violated Article 3 of the Convention since the authorities allegedly
were aware that solitary confinement damages the mental health of a
person.

84. Moreover, he maintained that while detained
in solitary confinement medical monitoring of his condition had been
insufficient, notably in that the examinations failed to aim at ascertaining
whether a mental disorder was developing. Thus, he alleged that during
his time in the Western Prison no psychiatric examinations as such had
been carried out in this respect.

85. Also, as to the accounts given by the doctors,
nurses and the staff at the Western Prison in the beginning of October
1998 on the monitoring of his condition while in solitary confinement,
the applicant points out that those were submitted after the City Court
in its judgment had expressed a very critical opinion with regard to
the said monitoring. Thus, it was only after the passing of the judgment
by the first instance court in the compensation proceedings that these
very categorical statements were made.

86. The Government maintained that in general
there is no basis for claiming that pre-trial detention in solitary
confinement as provided for by Danish law constitutes torture in contravention
of Article 3 of the Convention. More specifically they submitted that
the applicant's detention on remand in solitary confinement, which lasted
eleven months and fourteen days, was not in breach of the said provision.
There had been reasonable grounds for suspecting that the applicant
had committed a very serious crime that might have resulted in prolonged
imprisonment, and solitary confinement was necessary to prevent the
applicant from impeding the police investigation. Moreover, the applicant
himself gave rise to a considerable extent to the duration of the pre-trial
detention in solitary confinement by maintaining until 26 September
1995 his false statement, as agreed with the other co-accused, PL, and
by fabricating false diary notes in support thereof. The solitary confinement
had been lifted as soon as the applicant could no longer influence the
investigation, for example through communication with the co-accused
in order that they harmonise their statements.

87. The Government further submitted that the
authorities did not know, nor could have known, that the applicant was
harmed by being detained in solitary confinement. Theydid not question that the applicant was found to be psychotic
during the period of psychiatric observation from 8 December 1997 until
19 January 1998, but maintained that during the period from 14 December
1994 until 28 November 1995, he did not show any signs of oncoming or
existing mental disorder and that he was indeed effectively monitored,
notably forty-three times by nurses and twenty-seven times by doctors,
who were well-trained and knew what telltale signs to look for when examining
inmates in solitary confinement. In this respect they referred inter alia
to the statements submitted by the Chief Consultant of the Copenhagen
Prisons on 2 October 1998.

88. In addition, they pointed out that the solitary
confinement did not imply total isolation from other people. The applicant
had daily contact with the prison staff and regularly visits by nurses,
doctors, a welfare worker, his counsel, and others from the outside
world, although the latter took place under surveillance. Finally, the
Government noted that the applicant in fact chose to remain in voluntary
solitary confinement in the period from 28 November until 12 December
1995.

B. The Court's assessment

89. As the Court has held on many occasions,
Article 3 of the Convention enshrines one of the most fundamental values
of a democratic society. It prohibits in absolute terms torture or inhuman
or degrading treatment or punishment, irrespective of the circumstances
and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

90. According to the Court's case-law,
ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 of the Convention. The assessment of this
minimum level is relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, p. 65, § 162). Furthermore, in considering whether treatment
is “degrading” within the meaning of Article 3, the Court will have
regard to whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible with Article
3. However, the absence of such a purpose cannot conclusively rule out
a finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III,
and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).

91. In the light of Article 3 of the
Convention, the State must ensure that a person is detained under conditions
which are compatible with respect for human dignity, that the manner
and method of the execution of the measure do not subject the individual
to distress or hardship exceeding the unavoidable level of suffering
inherent in detention, and that, given the practical demands of imprisonment,
the person's health and well-being are adequately secured (see Kudła
v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI), with
the provision of the requisite medical assistance and treatment (see, mutatis
mutandis, the Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). When assessing conditions
of detention, account has to be taken of the cumulative effects of these
conditions, as well as the specific allegations made by the applicant
(see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).

92. The Court notes that the applicant's complaints
under Article 3 of the Convention concern two issues:

1) Whether the duration of the isolation period
was excessive or put in other words, whether the length of the solitary
confinement, which lasted from 14 December 1994 until 28 November 1995,
in itself was in breach of the said provision; and

2) Whether the applicant's state of mental health
was effectively monitored during this period.

1) Whether the duration of the isolation
period was excessive

93. The Court reiterates that solitary confinement
is not in itself in breach of Article 3 (cf. Valašinas v. Lithuania and Peers v. Greece, cited above). “Whilst
prolonged removal from association with others is undesirable, whether
such a measure falls within the ambit of Article 3 of the Convention
depends on the particular conditions, the stringency of the measure,
its duration, the objective pursued and its effects on the person concerned”
(see e.g. Hosie v. United Kingdom, application no. 27847/95, Commission decision
of 23 October 1997, R v. Denmark, no. 10263/83, Commission decision of 11 March 1985,
DR 41 p. 149 and Ensslin, Baader, Raspe v. Germany, no. 7572/76, 7586/76 and
7587/76, Commission decision of 8 July 1978, DR 14, p. 64).

94. In the above-mentioned R v. Denmark, although finding no appearance of a violation of
Article 3 of the Convention, the Commission stated that 17 months' of
solitary confinement was an undesirable length of time, and that the
authorities must ensure that its duration does not become excessive.

95. Furthermore, the Court notes for instance
the report of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment after their visit to Denmark
from 29 September to 9 October 1996 (CPT/Inf (97) 4)), from which it appears
that the issue of solitary confinement had featured prominently in the
ongoing dialogue between the CPT and the Danish authorities. The Committee
stressed that all forms of solitary confinement without appropriate
mental or physical stimulation are likely in the long term to have damaging
effects, resulting in deterioration of mental faculties and social abilities.

96. On the other hand, the Court reiterates its
finding in Messina v. Italy (dec.), no. 25498/94, ECHR 1999-V concerning
the applicant's placement under a special regime for approximately four
and a half years because of very serious offences linked to the Mafia
of which he had been convicted or with which he had been charged. The
Court found that the treatment did not reach the minimum level of severity
for it to amount to a violation of Article 3 of the Convention. Again,
in Bastone
v. Italy (dec), no. 59638/00, on 18 January 2005, the Court declared
inadmissible the applicant's complaint under Article 3 of the Convention
about the special prison regime that he was subjected to from 1993 until
2003 aimed at preventing him from having contact with the Mafia. Finally,
in Öcalan
v. Turkey, [GC], no. 46221/99, § 196, 12 May 2005, while concurring
with the CPT's recommendations that long-term effects of the applicant's
relative social isolation (which had lasted since 16 February 1999,
thus more than six years at the date when the judgment was adopted)
should be attenuated by giving him access to the same facilities as
other high security prisoners, such as television and telephone contact
with his family, the Court found that the general conditions in which
he was detained as the sole inmate at İmralı Prison had not thus far
reached the minimum level of severity required to constitute inhuman
or degrading treatment within the meaning of Article 3 of the Convention.

97. In the present case, the length of the solitary
confinement lasted from 14 December 1994 until 28 November 1995, thus,
eleven months and fourteen days. The Court notes that a period of such
a length may give rise to concern because of the risk of harmful effects
upon mental health, as stated on several occasions by the CPT. However,
when assessing whether the length was excessive under Article 3 the
Court must also take into account the conditions of the detention including
the extent of the social isolation. The applicant was detained in a
cell which had an area of about eight square metres and in which there
was a television. Also, he had access to newspapers. He was totally
excluded from association with other inmates, but during the day he
had regular contact with prison staff, e.g. when food was delivered;
when he made use of the outdoor exercise option or the fitness room;
when he borrowed books in the library or bought goods in the shop. In
addition, every week he received lessons in English and French from
the prison teacher and he visited the prison chaplain. Also, every week
he received a visit from his counsel. Furthermore, during the segregation
period in solitary confinement the applicant had contact twelve times
with a welfare worker; and he was attended to thirty-two times by a
physiotherapist, twenty-seven times by a doctor; and forty-three times
by a nurse. Visits from the applicant's family and friends were allowed
under supervision. The applicant's mother visited the applicant approximately
one hour every week. In the beginning friends came along with her, up
to five persons at a time, but the police eventually limited the visits
to two persons at a time in order to be able to check that the conversations
did not concern the charge against the applicant. Also, the applicant's
father along with a cousin visited the applicant every two weeks.

98. In these circumstances, the Court finds that
the period of solitary confinement in itself, lasting less than a year,
did not amount to treatment contrary to Article 3 of the Convention.

2) Whether the applicant's state of mental
health was effectively monitored during this period.

99. The Court recalls that the authorities are
under an obligation to protect the health of persons deprived of liberty
and the lack of appropriate medical care may amount to treatment contrary
to Article 3 (see, among others, McGlinchey and Others v. the United Kingdom,no. 50390/99, § 57, ECHR 2003-V, and İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII).
In the case of mentally ill persons, the assessment of whether the treatment
or punishment concerned is incompatible with the standards of Article
3 has, in particular, to take into consideration their vulnerability
and their inability, in some cases, to complain coherently or at all
about how they are being affected by any particular treatment (see,
for example, Herczegfalvy and Aerts v. Belgium, both cited above). In the judgment Keenan v. United
Kingdom, no. 27229/95, ECHR 2001-III, §§ 113-116, the Court was
struck by the lack of medical notes concerning the applicant, who was
an identifiable suicide risk. It found a lack of effective monitoring
of the applicant's condition and that the lack of informed psychiatric
input into his assessment and treatment disclosed significant defects
in the medical care provided to a mentally ill person known to be a
suicide risk.

100. In the present case the applicant was placed
in an observation cell from 13 December 1994 at 8 p.m. until 14 December 1994
12.30 p.m. because he had stated that he suffered from claustrophobia
and expressed contemplation of suicide. The Court notes that this period
concerns the very first day of the applicant's arrest, before the authorities
decided to detain him in solitary confinement. Also, it observes that
during this sixteen-and-a-half-hour-period the applicant was observed
thirty-six times by the prison staff, twice by nurses.

101. During the period of solitary confinement
from 14 December 1994 until 28 November 1995 the applicant was attended
to by medical or health care staff regularly, thus twenty-seven times
by a doctor, forty-three times by a nurse, thirty-two times by a physiotherapist,
and a couple of times by a dentist. With regard to the reports relating
to the twenty-seven medical inspections carried out by a doctor, the
following events are found noteworthy:

102. On 11 January 1995 a doctor attended the
applicant and refused to prolong the prescription for sleeping pills.
The doctor established that the applicant had no complaints of claustrophobia
and advised him to take “physical exercise” to achieve natural fatigue
instead of chemical, tablet-induced sleep.

103. During a period starting approximately mid
January 1995 until the end of that month the applicant went on a hunger
strike, although he drank fruit juices. In this connection he was monitored
every day by doctors in the period from 16 until 18 January 1995. On 17
January 1995, the applicant stated that he was determined to starve
himself to death, whereupon the prison doctor informed him of the relevant
Danish regulation, which prescribes respect for the desires of mentally
competent persons, even the desire of dying. The doctor found the applicant
mentally capable and not abnormal for the purposes of taking this decision
and the doctor received and accepted the applicant's refusal of medical
intervention i.e. artificial feeding at any future potentially fatal
weakening of the applicant's health. Furthermore, the doctor found the
applicant physically normal and without any acetone smell which usually
occur at fasts. The doctor prescribed the applicant a sleeping pill
for that night. According to the prison rules, the doctor also requested
a psychiatric assessment of the applicant – a requirement when inmates
go on hunger strike even if no signs of mental disorder are found. The
following day, on 18 January 1995 the applicant informed a doctor that
he had drunk but that he expected to be dead within three weeks. The
doctor found the applicant physically normal and without any signs of
dehydration. As to the applicant's mental health, the doctor awaited
the psychiatric examination, which was scheduled to take place on the
same day. In his report the psychiatrist concluded:

“Visit to a thirty-year-old male, charged with
Article 191[of the Penal Code (straffeloven)], of which, according to himself, he is innocent.
He is now carrying out a hunger strike, as a protest against his conception
that the press and others have convicted him in advance, and he is fully
aware of the consequences of such an act and is at present writing farewell
letters, his will, etc. Diagnosis: situational reaction.”

Subsequently, until the applicant decided
to start eating again at the end of January 1995, thus a period of approximately
twelve days, the applicant was attended to twice a week by a doctor.

104. In March 1995 an EEG scanning was carried
out, notably to check the applicant for epilepsy. On 1 May 1995 a doctor
attended the applicant because he complained of continuously pain in
his lower back. The doctor ordered that he be given an extra mattress
and referred him to a physiotherapist.

105. On 12 December 1995 the applicant decided
to leave the solitary confinement that he had volunteered to since 28
November 1995, when it was lifted by the court. Moreover, having volunteered
for kitchen duty, he was attended to by a doctor, as the Chief Consultant
of the Copenhagen Prisons had stated that inmates with indications of
for example mental disorders or significantly deviating conduct were
not accepted for kitchen duty.

106. On the basis of the medical notes
submitted, the Court considers it established that the applicant was
attended to by medical staff automatically and regularly, and that the
latter reacted promptly and increased their observation of the applicant,
whenever he showed any change in mood or behaviour.

107. In addition to the medical notes
submitted, the Court recalls inter alia the statement provided on 2 October 1998 by the
Chief Consultant of the Copenhagen Prisons. He did not question that
the applicant was found to be psychotic during the period of psychiatric
observation from 8 December 1997 until 19 January 1998, that is more than
two years after the termination of the solitary confinement, but underlined
that the applicant had not been found to be significantly mentally ill,
borderline psychotic or psychotic during the period of detention from
13 December 1994 until 14 May 1996. Moreover, he stressed that the psychiatrist's
assessment of the applicant on 18 January 1995 was carried out for administrative
reasons only in connection with the applicant's short-term refusal to
eat. It was thus not carried out due to any uncertainty on the prison
doctor's behalf as to the applicant's mental state, and neither the
prison doctor nor the psychiatrist found the applicant's mental state
particularly remarkable or even threatened. Before the High Court the
chief consultant repeated that none of the highly qualified and well-trained
doctors and nurses attending the applicant during the relevant period
had noted any signs of mental disorder in the applicant. He pointed
out in that respect that the said doctors and nurses had plenty of experience
with examining inmates held in solitary confinement and that they knew
what telltale signs of oncoming or existing mental disorder to look
for when examining such inmates. However, there were no signs that the
applicant was characterised by incipient isolation syndrome. The symptoms
of this syndrome are difficulties of concentrating, sleeping trouble,
disturbed perception of time and space, disturbed interpretation of
sensory impulses, depression, possibly with self-destruction and low
self-esteem, attacks of anxiety, lack of interest in surroundings. An
incipient isolation syndrome may develop into a borderline psychosis,
the symptoms being delusions/paranoia, feeling of unreality and into
an actual psychosis. When he suspects incipient isolation syndrome,
he writes to the prison management about it with a view to forwarding
it to the counsel and the prosecutor. In 1998, for example, the witness
wrote such letters in thirty-two cases. He did not know exactly how many
such letters he had written in 1995, but he has not changed practice
in this respect since 1992.

108. In these circumstances the Court
cannot share the applicant's view that the monitoring carried out was
not as such adequate and sufficient. Admittedly, the applicant was not
automatically or regularly examined by a psychologist or a psychiatrist.
In the Court's opinion, however, such a general obligation cannot be
imposed on the authorities, or the detainees for that matter, in order
that the States comply with the requirement that persons in solitary
confinement are effectively monitored.

109. Finally, the Court will proceed to examine
whether observations made by other persons of the applicant's behaviour
during his pre-trial detention in solitary confinement could or should
have given rise to the authorities increasing their monitoring or submitting
the applicant to further psychological or psychiatric examinations.
In particular, the Court notes the testimonies given by the applicant's
mother, his cousin, the prison chaplain, and the prison teacher before
the City Court in the compensation proceedings (see §§ 48-51). However,
none of those four witnesses expressed the opinion that the applicant
had developed a mental illness and they did not at any time during the
applicant's detention in solitary

confinement report their observations or their concerns to the courts,
the counsel, the prison management, the nurses or the doctors. Having
addressed the latter would have been highly appropriate, as will be
seen from the statement given by the Chief Consultant of the Copenhagen
Prisons as to his general practice of reporting suspicion of incipient
isolation syndrome to the prison management with a view to forwarding
it to the counsel and the prosecutor.

110. In these circumstances, the Court concludes
that there was no lack of effective monitoring of the applicant's condition
or lack of psychiatric assessment or lack of medical attention, which
could amount to a treatment contrary to Article 3 of the Convention.

FOR THESE REASONS, THE COURT

Holds by 4 votes to 3 that there has been no violation of Article
3 of the Convention;

Done in English, and notified in writing
on 21 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Christos Rozakis
Deputy Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the following
dissenting opinion of Judges Rozakis, Loucaides and Tulkens is annexed
to this judgment.

C.L.R.

S.Q.

JOINT DISSENTING OPINION OF JUDGES ROZAKIS,
LOUCAIDES AND TULKENS

We do not share the
conclusion of the majority that there has been no violation of Article
3 in the present case for the following reasons.

1. Leaving aside the
question whether the case-law cited under § 96 of the judgment ought
to be distinguished from the present case owing to the differences in
the criminal offences concerned, clearly a distinction needs to be made
between, on the one hand, social isolation or a special regime imposed
after a conviction by a court and, on the other, pre-trial detention
in solitary confinement, as in the present case. At the relevant time,
according to sections 770a and 770b of the Administration of Justice
Act, pre-trial detention in solitary confinement: “...cannot be initiated
or continued if the purpose thereof can be fulfilled by less radical
measures or if the measure is disproportionate to the importance of
the case and the sanction to be expected if the suspect is found guilty.
Decisions on solitary confinement must also take into account the special
potential strain on the suspect owing to his youth or physical or mental
weakness”. Thus, solitary confinement was an exceptional measure,
which could be applied only when it was considered absolutely necessary
in the circumstances.

Nevertheless, in
this case, the City Court and, on appeal, the High Court, when prolonging
the applicant's solitary confinement, gave rather general reasons for
their decisions and did not specify why, in the circumstances, solitary
confinement was considered absolutely necessary or, to put it another
way, why the applicant had to be totally excluded from association with
other inmates. Moreover, the decisions did not elaborate on whether
less radical measures had been considered, for example they did not
explain why “normal” pre-trial detention under section 762 of the
Administration of Justice Act was not considered sufficient in the circumstances.
Also, we find it noteworthy that the solitary-confinement measure was
lifted on 28 November 1995 as soon as the applicant admitted before the
City Court his involvement in the import of the papaya fruit (see §§ 13-19).

Taking these considerations
into account, we are not convinced that it was absolutely necessary,
in the circumstances, to subject the applicant to the exceptional measure
of pre-trial detention in solitary confinement for such a long time.

2. In the present
case from 8 p.m. on 13 December 1994, the day of his arrest, until 12.30
p.m. the following day the applicant was placed in an

observation cell
because he had stated that he was suffering from claustrophobia and
contemplating suicide. Subsequently, from 14 December 1994 until 28
November 1995, he was detained in solitary confinement and accordingly
placed in a cell in which he was totally excluded from association with
other inmates. On the basis of the medical notes and statements that
were produced, the Court considered it established that the medical
staff had monitored the applicant and placed him under increased surveillance
whenever he showed any change in mood or behaviour.

Nevertheless, the
applicant was attended to only once by a psychiatrist, namely on 18
January 1995, less than one month after he had been detained in solitary
confinement. During the remaining period of solitary confinement, which
lasted until 28 November 1995 (that is to say, for another ten months),
no psychological or psychiatric examination was carried out of the applicant.

We reiterate in this
connection that the CPT in its report of 1991 (CPT/Inf (91) 2) had underlined
that, in certain circumstances, solitary confinement could amount to
inhuman and degrading treatment, and that in any event all forms of
solitary confinement should be as short as possible. It recommended
that the Danish authorities take steps to ensure that remand prisoners
were only placed in solitary confinement in exceptional circumstances
which were strictly limited to the actual requirements of the case.
Also, we observe that at the relevant time a research project had been
commissioned by the Minister of Justice to examine “any possible harmful
effects of being remanded in custody in solitary confinement”, the
result of which had been published in a report in May 1994 stated that
the research team had found inter alia that: “...remand in custody in solitary confinement
versus non-solitary confinement involves the risk of harmful effects
on mental health” and that “...there is a greater probability that
those in solitary confinement develop mental problems and are transferred
to prison hospitals for mental reasons than those who are not placed
in solitary confinement” (see, for instance, page 164 of document
CPT/Inf (96) 14).

In these circumstances
and having regard to the fact that the applicant had displayed mental
vulnerability at an early stage of his detention, for example he said
he was contemplating suicide on the day he was arrested, we find that
it would have been reasonable to expect the authorities to arrange for
the applicant to receive regular psychological or psychiatric examinations
on their own initiative.

Also, we note the
observations made by the following persons as regards the applicant's
behaviour during his pre-trial detention in solitary confinement:

The applicant's mother stated, among other things,
that she felt that it was worst for the applicant during the detention
period when he was also solitary confined. Thereafter, he became more
human and spoke more coherently. During the solitary confinement he
wrote some letters with weird contents, including a letter with incomprehensible
presentation of how the universe works. She had talked with counsel
about getting a psychologist in from outside, but it was too difficult
to cope with and nothing came of it. She would describe the difference
in the applicant's behaviour before and after by saying that he used
to be dynamic, committed and extrovert but had become grumpy and inaccessible.

The applicant's cousin stated, among other things,
that the applicant seemed deeply unhappy and preoccupied. Often he was
just listening. He had also changed appearance, having grown a big beard
and lost weight. The applicant became better as time passed, as if he
had found some peace.

The prison chaplain stated, among other things,
that the applicant moved with great care around the grounds and walked
practically sideways along the wall. He moved like a person who had
done no exercise and seemed timid. The applicant needed exercise, both
physically and mentally. He had a great feeling of powerlessness. The
applicant seemed different than other inmates, like a stranger in that
he could both think and talk and was not already “busted”. The chaplain
found that in general persons detained in solitary confinement looses
their concentration. This was also the case as regards the applicant.
The applicant cheered up and felt stimulated by the visits to the chaplain
and it has been difficult to end the consultations as the applicant
kept finding new subjects and knew which subjects were interesting to
the chaplain.

The prison teacher stated, among other things,
that the applicant from the first day seemed desperate. Subsequently
he appeared resigned. On his index card of 18 September 1995, the teacher
had noted that the applicant got more and more depressed. The applicants'
physical condition worsened, he got careless about himself, both concerning
clothing and hygiene. The applicant read a lot, although he encountered
difficulties in concentrating.

Apparently, none of these four witnesses reported
their observations or their concerns to the courts, counsel, the prison
management, the nurses or the doctors, which may have resulted in a
psychological or psychiatric assessment having been carried out. In
our view, however, such assessments should not depend on a request but
instead should be part of a system of automatic regular monitoring of
long-term detainees in solitary confinement. We believe that only under
these conditions can the required monitoring be considered effective.

In view of the above
we find that there has been a violation of Article 3 of the Convention
in this case.